Citation Nr: 0822460
Decision Date: 07/09/08 Archive Date: 07/14/08
DOCKET NO. 06-34 239 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to an effective date earlier than January 31,
2003, for the grant of service connection for right ear
hearing loss.
2. Entitlement to an effective date earlier than August 31,
2005, for the grant of service connection for tinnitus.
3. Entitlement to a rating in excess of 10 percent for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The veteran had verified active duty service from October
1962 to August 1965. This case comes before the Board of
Veterans' Appeals (Board) on appeal from March 2004, January
2006 and March 2006 rating decisions issued by the Department
of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York, which, respectively, denied entitlement an increased
rating for left ear hearing loss, granted entitlement to
service connection for right ear hearing loss with an initial
10 percent rating, effective January 31, 2003, and granted
entitlement to service connection for tinnitus with an
initial 10 percent rating, effective August 31, 2005.
In December 2005 and May 2006, the veteran provided testimony
before hearing officers at the Buffalo RO. Transcript of
these hearings are of record.
On the veteran's November 2006 substantive appeal, he
indicated that he desired a hearing before a Veterans Law
Judge (VLJ) at the RO. A day later, the veteran submitted a
hearing clarification form where he requested a
videoconference hearing at the RO. In September 2007, VA
received a letter from the veteran's congressman stating that
the veteran did not want a videoconference hearing, and
instead wanted his case forwarded to the Board immediately.
The hearing request is deemed withdrawn.
The Board has granted a motion to advance this case on its
docket.
FINDINGS OF FACT
1. On January 23, 1996, the veteran submitted claims for
entitlement to service connection for bilateral hearing loss
and tinnitus to the RO.
2. The RO denied the claims for entitlement to service
connection for right ear hearing loss and tinnitus in a July
1996 rating decision.
3. Entitlement to service connection for right ear hearing
loss and tinnitus arose prior to July 1996.
4. The RO mailed notice of the July 1996 denial of the
veteran's claims on July 26, 1996; the notice of denial was
not addressed with the veteran's address of record and failed
to inform him of his appellate rights with regard to the
denial.
5. The veteran has Level III hearing in the right ear and
Level IX hearing in the left ear.
CONCLUSIONS OF LAW
1. The criteria for an effective date of January 23, 1996,
for a grant of service connection for hearing loss of the
right ear have been met. 38 U.S.C.A. § 5110 (West 2002 &
Supp 2008); 38 C.F.R. §§ 3.400, 20.1103 (2007).
2. The criteria for an effective date of January 23, 1996,
for a grant of service connection for tinnitus have been met.
38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 20.1103.
3. The schedular criteria for a 20 percent rating, but not
higher, for bilateral hearing loss have been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI,
VIA and VII, Diagnostic Code 6100; 4.86 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2008) redefined VA's duty to assist the veteran
in the development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
The claim arises from disagreement with the initial rating
following the grant of service connection. The courts have
held that once service connection is granted the claim is
substantiated, additional VCAA notice is not required; and
any defect in the notice is not prejudicial. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).
The United States Court of Appeals for Veterans Claims
(Court) has elaborated that filing a notice of disagreement
begins the appellate process, and any remaining concerns
regarding evidence necessary to establish a more favorable
decision with respect to downstream elements are
appropriately addressed under the notice provisions of 38
U.S.C. §§ 5104 and 7105 . See Hartman v. Nicholson, 483 F.3d
1311 (Fed.Cir.2007) . Where a claim has been substantiated
after the enactment of the VCAA, the appellant bears the
burden of demonstrating any prejudice from defective VCAA
notice with respect to the downstream elements. See Dunlap,
21 Vet. App. at 119 .Goodwin v. Peake, No. 05-0876 (Fed. Cir.
May 19, 2008)
There has been no allegation of error with regard to the
effective date issues on appeal. Accordingly, no further
VCAA notice is required on these issues.
With regard to the increased rating claim, under the VCAA, VA
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must request that the claimant
provide any evidence in his possession that pertains to the
claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App.
112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b).
The United States Court of Appeals for Veterans Claims
(Court) has also held that the VCAA notice requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; 3)
a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
In letters issued in October 2005 and March 2006, subsequent
to the initial adjudication of the claims, the RO notified
the veteran of the evidence needed to substantiate his claim
for an increased rating. The letters also satisfied the
second and third elements of the duty to notify by informing
the veteran that VA would try to obtain medical records,
employment records, or records held by other Federal
agencies, but that he was nevertheless responsible for
providing any necessary releases and enough information about
the records to enable VA to request them from the person or
agency that had them.
For claims pending before VA on or after May 30, 2008, 38
C.F.R. 3.159 was recently amended to eliminate the
requirement that VA request that a claimant submit any
evidence in his or her possession that might substantiate the
claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event,
the October 2005 VCAA letter contained a notation that the
veteran should submit any evidence in his possession
pertinent to the claims on appeal.
The veteran has substantiated his status as a veteran. He
was notified of all other elements of the Dingess notice,
including the disability-rating and effective-date elements
of the claims, by the March 2006 letter.
The Board observes that this case is also affected by
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this
decision, the Court found that, at a minimum, adequate VCAA
notice in increased rating cases requires: (1) that VA notify
the claimant that, to substantiate such a claim, the claimant
must provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life; (2) if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increased
compensation.
The October 2005 letter told the veteran that to substantiate
his claim for an increased rating, he should submit evidence
showing that the disability had worsened. The March 2006
letter told him that he could substantiate the claim with
evidence of the impact of the disability on work.
He was not specifically advised that he could substantiate
the claim with evidence of its impact on his daily
activities.
Any notice error will be presumed prejudicial unless VA can
show that the error did not affect the essential fairness of
the adjudication and persuade the Court that the purpose of
the notice was not frustrated, for example by demonstrating
"(1) that any defect was cured by actual knowledge on the
part of the claimant, (2) that a reasonable person could be
expected to understand from the notice what was needed, or
(3) that a benefit could not have been awarded as a matter of
law." Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir.
2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339
(2007) .
A procedural or substantive error is prejudicial when the
error affects a substantial right that a statutory or
regulatory provision was designed to protect. See McDonough
Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984). Such an
error affects the essential fairness of the adjudication.
Id.; see Parker v. Brown, 9 Vet. App. 476 (1996); see also
Intercargo Ins. Co. v. United States, 83 F.3d 391
(Fed.Cir.1996). Accordingly, if the error does not affect
the "essential fairness" of the adjudication by preventing
her meaningful participation in the adjudication of the
claim, then it is not prejudicial. McDonough, supra Overton
v. Nicholson, 20 Vet. App. 427, 435-7 (2006). Despite the
timing deficiency with regard to the VCAA notice, she was
given ample opportunity to provide the necessary evidence to
support her claim. She thus, had a meaningful opportunity to
participate, and was not prejudiced.
The veteran was specifically notified by the March 2006
Dingess notification letter that evidence demonstrating the
effect his disabilities have had on his employment would aid
in substantiating his claim. He has not, however, been
provided notice that evidence showing the effect of his
disability on his daily life would aid in substantiating his
claim. This notice defect does not constitute prejudicial
error in this case because the veteran demonstrated actual
knowledge of the need for evidence of the impact of his
disabilities on employment and daily life, specifically by
his hearing testimony in December 2005 and May 2006 and his
numerous statements provided to VA regarding his hearing
loss. In this regard he has contended that the disability
causes difficulty in understanding words.
The relevant rating criteria for hearing loss, as outlined
below, provide for disability ratings based on specific
measurements or test results. While the veteran has not
received VCAA notice of the criteria used to rate his
service-connected hearing loss, The January 2006 statement of
the case included a discussion of the rating criteria
utilized in the present case. While such post adjudication
notice cannot serve as VCAA notice, Pelegrini II; it should
have served to advise a reasonable person that the disability
was rated on the basis of specific test results. At his
December 2005 hearing, the veteran indicated an understanding
of the specific measurements and test results used to
determine whether his disability had worsened. He
specifically referenced his audiogram results and word
recognitions scores. The record therefore reflects actual
knowledge of the evidence necessary to substantiate the
veteran's claim, namely evidence showing that his disability
had gotten worse.
The veteran had a meaningful opportunity to participate in
the adjudication of his claim inasmuch as it was not sent to
the Board until May 2007. The veteran had over a year after
the notice in which to submit evidence, argument and requests
for hearings. He in fact did so.
The March 2006 letter provided notice on the third element of
Vazquez-Flores notice.
Additionally, the VCAA letters provided notice on the fourth
element of Vazquez-Flores notice by providing examples of
evidence the veteran could submit or ask VA to assist in
obtaining.
Although the notice was provided after the initial denial of
the claim, the veteran had a reasonable opportunity to
participate in the adjudication of his claims, inasmuch as it
remained pending for years after the rating decision and SOC.
The veteran was accordingly made aware of the requirements
for increased evaluations pursuant to Vazquez-Flores.
The Duty to Assist
The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This
"duty to assist" contemplates that VA will help a claimant
obtain records relevant to his claim, whether or not the
records are in Federal custody, and that VA will provide a
medical examination or obtain an opinion when necessary to
make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the veteran,
including service medical records, records from various
federal agencies, and private medical records. Additionally,
the veteran was provided proper VA examinations in response
to his claims.
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements. The appeal is thus ready to be considered on
the merits.
Effective Date Claims
Legal Criteria
Generally, the effective date of an award of disability
compensation based on an original claim or a claim to reopen
is the date of receipt of the claim, or the date entitlement
arose, whichever is later. 38 C.F.R. § 3.400 (2007). The
effective date of an award of compensation based on direct
service connection is the date following separation from
service, if the claim is received within one year of that
date. Otherwise, the effective date is the date VA receives
the claim, or the date entitlement arose, whichever is later.
38 U.S.C.A. § 5110(a), (b)(1) (West 2008); 38 C.F.R. §
3.400(b)(2) (2007).
With regard to claims to reopen, where the new and material
evidence that reopened the claim consists of service
department records (since it is considered these records were
lost or misplaced), the effective date is to agree with the
evaluation or date of receipt of the claim on which the prior
evaluation was made, whichever is later, subject to rules on
original claims filed within one year after separation from
service. 38 C.F.R. § 3.400(q)(2) (2007).
There exists a presumption of regularity that VA properly
discharged its official duty of mailing a copy of a VA
decision to a claimant's last known address, which may be
rebutted by the claimant submitting clear evidence of
irregular or disregarded mailing practices. Woods v. Gober,
14 Vet. App. 214, 220 (2000).
Analysis
The veteran contends that he is entitled to earlier effective
dates for the grants of service connection for right ear
hearing loss and tinnitus. Specifically, he contends that
the grant of service connection should be effective from 1996
as he was never provided notification of the prior denial of
his claims in July 1996.
The veteran initially filed a claim for entitlement to
service connection for hearing loss and tinnitus on January
23, 1996. These claims were denied in a rating decision
dated July 18, 1996. A letter notifying the veteran that his
claims had been denied was mailed on July 26, 1996. No
response to the rating decision notification letter was
received. The veteran contends that he never received this
letter as it was mailed to the incorrect address.
Thereafter, on January 31, 2003, the veteran filed a claim
for an increased rating for his service-connected left ear
hearing loss. On March 24, 2003, the RO interpreted a
statement from the veteran as an application to reopen a
claim for entitlement to service connection for right ear
hearing loss. In a March 2004 rating decision, the RO found
that the veteran had not submitted new and material evidence
to reopen the claim for entitlement to service connection for
right ear hearing loss. The veteran initiated an appeal with
respect to this denial.
On August 31, 2005, the veterans submitted a statement
referencing entitlement to service connection for tinnitus.
In the January 2006 rating decision on appeal, the veteran
was granted entitlement to service connection for right ear
hearing loss. An initial rating of 10 percent was assigned,
effective January 31, 2003. Similarly, in the March 2006
rating decision on appeal, the veteran was granted
entitlement to service connection for tinnitus, and an
initial rating of 10 percent was assigned, effective August
31, 2005.
The record establishes that the RO issued a July 1996 rating
decision denying the veteran's initial claims for entitlement
to service connection for right ear hearing loss and
tinnitus. However, it appears that the veteran never
received notice of this denial as the July 26, 1996,
notification letter was mailed to the wrong address. On an
April 1996 VA examination request form, it is noted that the
veteran's address had changed The July 26, 1996, rating
decision notification letter was initially addressed to the
veteran at his new address, but this address was scratched
out and the veteran's old address was written in.
The obvious confusion regarding the veteran's current mailing
address on the face of the July 26, 1996, rating decision
notification letter, coupled with the veteran's credible
testimony that he never received the letter, constitutes
clear evidence rebutting the presumption of regularity and
substantiating the veteran's assertion that this error
interfered with the proper delivery of the notice. See Crain
v. Principi, 17 Vet. App. 182, 189 (2003).
The mailing error tolled the time period for appealing the
1996 decision. The claims for service connection filed on
January 23, 1996, did not become final. See 38 U.S.C.A, §
5104(a) (Secretary to "provide" to each VA-benefits claimant
timely notice of any VA-benefits adjudication decision
accompanied by "an explanation of the procedure for obtaining
review of the decision"). Failure to provide notice of
appellate rights means that a claim remains open. See Parham
v. West, 13 Vet. App. 59 (1999) (per curium) (discussing In
Mater of Fee Agreement of Cox, 10 Vet. App. 361, 375 (1997),
vacated on other grounds, 149 F.3rd 1360 (Fed. Cir. 1998)
(holding affirmed vacated for consideration of facts alleged
to have occurred after court decision)).
The grants of service connection were premised on findings of
direct service incurrence. The evidence in 1996 included
current medical evidence of hearing loss and tinnitus as
defined by VA, and the veteran's reports of hearing loss and
tinnitus since service. Entitlement to service connection,
therefore, arose prior to the 1996 claims.
Given the foregoing, the Board concludes that January 23,
1996, is the appropriate effective date for the grant of
service connection for right ear hearing loss and tinnitus.
An effective date earlier than January 23, 1996, is not
warranted as there is no indication that the veteran filed a
claim for entitlement to service connection for right ear
hearing loss or tinnitus prior to that date.
Increased Rating Claim
Factual Background
Entitlement to service connection for left ear hearing loss
was granted in a July 1996 rating decision with an initial
noncompensable rating assigned, effective January 10, 1996.
The veteran's current claim for an increased rating was
received in January 2003.
As a preliminary matter, the Board notes that the veteran was
granted service connection for right ear hearing loss in a
January 2006 rating decision. An initial rating of 10
percent was assigned, effective January 31, 2003. Following
the grant of service connection for right ear hearing loss,
the RO recharacterized the veteran's increased rating claim
as entitlement to a rating in excess of 10 percent for
bilateral hearing loss.
As discussed above, the Board has determined that an
effective date for the grant of service connection for right
ear hearing loss is more appropriately January 23, 1996.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the
veteran's claim for an increased rating was received in
January 2003 after entitlement to service connection for left
ear hearing loss had been established, the veteran's claim
for an increased rating pertains to the period beginning
January 2003 and one year prior. In addition, the RO will
the opportunity to rate the veteran's bilateral hearing loss
for the period to January 2003 before implementing the
Board's decision. Therefore, the Board will proceed with a
decision in this case.
In response to his claim for entitlement to an increased
rating for hearing loss, the veteran was provided a VA
audiological examination in June 2003. Pure tone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
10
55
70
85
LEFT
20
70
95
100
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and 82 percent in the left ear. The
diagnosis was moderate sloping to severe sensorineural
hearing loss in the right ear from 2000 Hz to 4000 Hz. The
left ear had moderately severe to profound sensorineural
hearing loss from 2000 Hz to 4000 Hz. Word recognition
ability was excellent.
Records of outpatient treatment at the VA Medical Center
(VAMC), establish that the veteran was prescribed hearing
aids for both ears in March 2003. Following testing, he was
diagnosed with sloping to severe sensorineural hearing loss
above 1500 Hz in the right ear and sloping to profound
sensorineural hearing loss above 1000 Hz in the left ear.
Similarly, in December 2003, the veteran was noted to have
severe high frequency hearing loss at 2000 Hz and above.
In March 2005, the veteran was provided an audiogram at the
Albany VAMC. Pure tone thresholds were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
10
60
70
80
LEFT
30
70
90
100
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and 68 percent in the left ear.
The veteran was afforded another VA audiological examination
in December 2005. Pure tone thresholds were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
10
55
70
70
LEFT
25
80
100
105+
Speech audiometry revealed speech recognition ability of 84
percent in the right ear and 78 percent in the left ear. The
diagnoses were moderate sloping to severe sensorineural
hearing loss in the right ear from 2000 Hz and moderately-
severe precipitously sloping to profound sensorineural
hearing loss from 1500 Hz in the left ear.
The veteran also went underwent a private audiogram in
December 2005. Pure tone thresholds were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
20
65
75
85
LEFT
30
80
105
110
Speech audiometry revealed speech recognition ability of 88
percent in the right ear and 48 percent in the left ear. The
diagnosis was bilateral high frequency sensorineural hearing
loss.
Legal Criteria
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (Rating Schedule). 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower evaluation will be assigned.
38 C.F.R. § 4.7 (2007).
In view of the number of atypical instances it is not
expected, especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified. Findings sufficiently characteristic to identify
the disease and the disability therefrom, and above all,
coordination of rating with impairment of function will,
however, be expected in all instances. 38 C.F.R. § 4.21
(2007).
In evaluating a disability, the Board considers the current
examination reports in light of the whole recorded history to
ensure that the current rating accurately reflects the
severity of the condition. The Board has a duty to
acknowledge and consider all regulations that are potentially
applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The medical as well as industrial history is to be
considered, and a full description of the effects of the
disability upon ordinary activity is also required. 38
C.F.R. §§ 4.1, 4.2, 4.10.
Evaluations of hearing loss range from noncompensable to 100
percent, based upon organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests, together with the average hearing threshold level as
measured by puretone audiometry tests in the frequencies
1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. §
4.85(a) and (d) (2007).
To evaluate the degree of disability for service-connected
bilateral hearing loss, the rating schedule establishes
eleven (11) auditory acuity levels, designated from level I,
for essentially normal acuity, through level XI, for profound
deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007).
The assignment of disability ratings for hearing impairment
is derived by a mechanical application of the Rating Schedule
to the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992).
When the pure tone thresholds at the four specified
frequencies (1000, 2000, 3000, and 4000 hertz) are 55
decibels or more, or when the pure tone thresholds are 30
decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
That numeral will then be elevated to the next highest Roman
numeral. 38 C.F.R. § 4.86.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
concern. Although a rating specialist is directed to review
the recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged
ratings are, however, appropriate for an increased rating
claim when the factual findings show distinct time periods
where the service-connected disability exhibits symptoms that
would warrant different ratings. The relevant focus for
adjudicating an increased rating claim is on the evidence
concerning the state of the disability from the time period
one year before the claim was filed until VA makes a final
decision on the claim. Hart v. Mansfield, 21 Vet. App. 505
(2007).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Analysis
With respect to the right ear, the greatest degree of hearing
impairment was measured at the veteran's December 2005
private audiological examination. The pure tone threshold
average at that time was 61.25 decibels with a speech
recognition score of 88 percent. This translates to Level
III hearing impairment under Table VI.
With respect to the left ear, the greatest degree of hearing
impairment was also measured at the veteran's December 2005
private audiological examination. The pure tone threshold
average at that time was 81.25 decibels with a speech
recognition score of 48 percent. This translates to Level IX
hearing under Table VI. In addition, as the veteran's left
ear hearing loss on the VA examination meets the requirements
for a pattern of exceptional hearing loss, Table VIA is for
application, his disability translates to Level VII under
Table VIA and is less favorable to the veteran.
Level III hearing impairment in one ear and Level IX hearing
in the other ear warrants a 20 percent rating under the
applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100
(2007). Accordingly, an increased rating is warranted.
In exceptional cases an extraschedular rating may be
provided. 38 C.F.R. § 3.321 (2007). The threshold factor
for extraschedular consideration is a finding that the
evidence before VA presents such an exceptional disability
picture that the available schedular evaluations for that
service-connected disability are inadequate. Therefore,
initially, there must be a comparison between the level of
severity and symptomatology of the claimant's service-
connected disability with the established criteria found in
the rating schedule for that disability. Thun v. Peake, 22
Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria
reasonably describe the claimant's disability level and
symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluation is, therefore, adequate, and no referral is
required. In the second step of the inquiry, however, if the
schedular evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the RO or Board must determine whether the
claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." 38 C.F.R. 3.321(b)(1). (related factors
include "marked interference with employment" and "frequent
periods of hospitalization"). When the rating schedule is
inadequate to evaluate a claimant's disability picture and
that picture has related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service for
completion of the third step--a determination of whether, to
accord justice, the claimant's disability picture requires
the assignment of an extraschedular rating. Id.
The veteran's disability is manifested by difficulty hearing.
The rating criteria contemplate such a disability. Hence,
the rating criteria are adequate to rate the disability.
The veteran reported that he had been turned down for
employment by various employers, but the record shows that he
was successfully employed as a carpenter for many years prior
to his retirement and there is no evidence that the hearing
loss caused marked interference with this employment.
Referral for consideration of an extraschedular rating is not
warranted.
ORDER
Entitlement to an effective date of January 23, 1996, for the
grant of service connection for right ear hearing loss is
granted.
Entitlement to an effective date of January 23, 1996, for the
grant of service connection for tinnitus is granted.
Entitlement to an increased rating of 20 percent for
bilateral hearing loss is granted.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs